Plaintiff v Defendant

2 The plaintiff filed a summons on 2 June 2014 seeking an order in respect of relief or remedy sought in the originating motion and also seeking interlocutory relief in the nature of discovery.

3 The matter came on before an Associate Justice on 29 July 2014. At that time the Associate Judge gave the plaintiff leave to file and serve an amended originating motion by 7 August 2014. This did not happen. The orders made on that day also provided for the plaintiff to file and serve any application to extend time pursuant to Order 56 of the Rules, together with any affidavit in support, and for responsive affidavits from the defendants to be filed by 25 July 2014.

4 By summons filed on 25 July 2014, the defendant sought that the proceedings be dismissed as incompetent because it was issued outside the time provided by s 4(1) of the Administrative Law Act 1978, or pursuant to r 23.01 of the Rules, and for other relief not presently material.

5 Eventually the plaintiff filed an Amended Originating Motion on 11 August 2014. That originating motion drops any application pursuant to the Administrative Law Act and proceeds solely pursuant to Order 56 of the Rules.

6 It is quite plain on the evidence submitted both by the plaintiff and the defendant that the proceeding was commenced out of time. By r 56.02(1) of the Rules a proceeding under Order 56 must be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose.

7 By r 56.02(2) of the Rules it is provided that where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

8 The Court has power under r 3.02(1) of the Rules to extend (or abridge) any time fixed by the Rules. By r 56.02(3) the Court must not extend the 60 day period fixed by paragraph (1) except in special circumstances.

9 By summons filed on 3 October 2014 (well outside the time set in the orders of 29 July 2014) the plaintiff applied for an extension of time. That summons also applied for a non-party discovery order.

10 The application to extend the time within which to commence the application for judicial review does not disclose any special circumstances. In substance the reason for the delay in filing the application is that Mr Garrett was busy with other matters. He was aware of the time limit but his devotion to other litigation was given priority over the application to review the decision of the defendant.

11 Further, it has not been demonstrated by Mr Garrett that there is any real prospect of the application for judicial review succeeding. The substance of the claim is a failure to take into account relevant matters. But in truth his application is in the nature of a merits review. This is not available under Order 56 of the Rules.

12 Thus, there being no special circumstances existing to extend the time, and there being no real prospects of success if the time were extended, it is not appropriate to extend the time.

(a) Mr Garrett, by his own admission, seeks to use this proceeding for the collateral purpose of assisting his claim for compensation from the fidelity fund. That is not a proper purpose for the judicial review of the decision of the defendant;

(b) Mr Garrett has not satisfied me that he has standing to commence the proceeding; and

(c) Since the hearing of this application the plaintiff has been declared bankrupt and, in consequence of an election by his Trustee, the proceeding is abandoned.

14 The plaintiff appeared as a self-represented litigant, albeit a litigant with significant experience in conducting litigation on his own behalf. He conceded that he has been declared a vexatious litigant in South Australia.[1] It was also a part of his explanation for the delay in commencing the application that he was heavily engaged in other matters before Courts and Tribunals.

15 A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the matter is conducted fairly and in accordance with law.[2] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[3] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[4] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in circumstances - it must ensure a fair hearing, not afford an advantage to the self-represented litigant: per Bell J in Tomasevic v Travaglini.[5]

16 In Rajski v Scitec Corporation Pty Ltd[6] Samuels JA said:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

17 I have sought during the hearing, and in considering the facts and arguments, to apply these tenets in the determination of the application by the plaintiff to extend the time for making his application for judicial review, and in relation to the defendant's application to dismiss the application, paying due regard to the position of the plaintiff as a self-represented litigant. In particular, because the Amended Originating Motion was difficult to follow (see below) and the affidavits in support were voluminous and included a huge pot pouri of material with little or no relevance to the application for the judicial review (and which was also difficult to understand or follow), I questioned the plaintiff to elucidate the best case he could articulate. At the same time I gave Counsel for the defendant every opportunity to respond and deal with the material of which proper notice was given.

18 The material filed and relied upon by the plaintiff was extensive. Apart from written submissions of over 80 pages, there were 4 affidavits relied upon and exhibits to those affidavits were contained in three lever arch folders bursting with double-sided pages and included material of little or no relevance. The affidavits filed were as follows:

(a) Affidavit of Andrew Moreton Garrett sworn 1 June 2014 ('the first Garrett affidavit');

(b) Affidavit of Andrew Moreton Garrett sworn 2 October 2014 ('the second Garrett affidavit'). Exhibit AMG-1 to this affidavit comprises 2 lever arch folders. The first folder contains 912 pages (double-sided). The second folder contains about another 900 pages (doubles sided);

(c) Affidavit of Andrew Moreton Garrett sworn 15 November 2014 ('the third Garrett affidavit'). Exhibit AMG-1 to this affidavit has one lever arch folder containing 673 pages (double-sided); and

(d) Affidavit of Andrew Moreton Garrett sworn 17 November 2014 ('the fourth Garrett affidavit').

19 The material advanced for the defendant was also extensive, although much less so than that put forward by the plaintiff. On behalf of the defendant the following affidavits were filed:

(a) Affidavit of Michelle Jane Harper sworn 25 July 2014 ('the first Harper affidavit');

(b) Affidavit of Michelle Jane Harper sworn 22 August 2014 ('the second Harper affidavit'); and

(c) Affidavit of Michelle Jane Harper sworn 20 October 2014 ('the third Harper affidavit').

20 There is a considerable range of authorities on what needs to be shown in order to establish special circumstances under r 56.02(3) of the Rules.[7] The expression 'special circumstances' is by its very nature incapable of precise or exhaustive definition.[8] Whether circumstances are special depends upon the context in which they occur. This does not mean that the circumstances must be unique; but they must have a particular quality of unusualness that permits them to be described as special: per Toohey J in Re Beadle and DirectorGeneral of Social Security,[9] see also Mann v Medical Practitioners Board of Victoria ('Mann');[10] Lednar v Magistrates' Court ('Lednar');[11] Carra v Hamilton ('Carra').[12]

21 In Mann[13] at first instance, Osborne J expressed the view that it was not appropriate to seek to define the meaning of the phrase 'special circumstances'. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words. His decision was upheld on appeal and no error of principle in his reasoning was discerned.[14]

22 The requirement that the plaintiff show 'special circumstances' requires that he make out circumstances that are not 'general in character',[15] but something exceeding 'that which is usual or common'.[16]

23 The authorities establish that r 56.03(2) of the Rules requires the Court to be objectively satisfied that special circumstances exist.[17] The existence of special circumstances is to be determined by reference to all the circumstances of the case.[18] The factors relevant to the exercise of the discretion under the rule include, but are not limited to, the period of the delay, the reason for the delay, whether the plaintiff has an arguable case,[19] the justice to both parties (which includes the prejudice to the parties) and the public interest in the finality of litigation.[20]

24 It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being 'special circumstances', for if that were so there would be little practical point to the time limit contained in the Rule.[21] On the other hand, where it is clear that a plaintiff's grounds are not arguable, or has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.

25 The proceeding concerns an attempt to review the determination by the defendant of a disciplinary complaint formerly made by one Robert Nowak in his capacity as director of three companies, two of which are now in liquidation. Mr Nowak apparently authorised the plaintiff to communicate with the defendant on his behalf in relation to the complaint.

26 At the conclusion of the investigation, the defendant was satisfied that there was no reasonable likelihood that the Victorian Civil and Administrative Tribunal ('VCAT') would find the legal practitioner concerned, one Francis Cahill, formerly of the firm Hambros & Cahill, guilty of professional misconduct or unsatisfactory professional conduct in respect of the matter under investigation ('the decision'). That decision was notified to the plaintiff together with reasons by a letter dated 31 March 2014, sent and received by the plaintiff on that day.[22]

27 The application has some unusual features. The plaintiff seeks to review the decision when he was not the person who made the complaint. Although he was involved through his claimed interest in the companies that Mr Nowak represented he was not a director of them at any relevant time (having been disqualified from acting as a director)[23] and his interest appears to be through his authorisation by Mr Nowak to communicate with the defendant, his interest as a beneficiary of the trust where it was the trustees of that trust that made the complaint, and his claim that he is now a trustee of the trust.

28 In short compass his complaints are that the defendant carried out an inadequate investigation and ought to have made findings of misconduct against Mr Cahill or against the firm Hambros & Cahill or against the companies by which that firm formerly conducted their incorporated legal practice.

29 On 19 November 2012 the defendant received from the plaintiff by email a complaint signed by a Mr Robert Nowak, purportedly as sole director of three companies, Holy Grail Hospitality Pty Ltd ('Holy Grail'), Sanctuary Australasia Pty Ltd ('Sanctuary') and Oenoviva (Australia & New Zealand) Pty Ltd (now ACN 133 861 579 Pty Ltd (in liquidation) (controller appointed)) ('Oenoviva'). I will refer to these companies together as 'the trustee Companies' because they were all at one stage at least, trustees of the Andrew Garrett Family Trust No 4 ('AGFT4'). The complaint concerned the law practice then known as Hambros & Cahill. On the complaint form it was stated that Hambros & Cahill had acted for 'entities associated with the Andrew Garrett Family Trust'.[24] The handwriting on the complaint form is that of Mr Garrett, although the signature is that of Mr Nowak. That, it appears, is because Mr Garrett was, and is, disqualified from holding the position of director of the trustee companies. That fact seems not to have inhibited him from continuing to control the actual conduct and dealings of the trustee companies.

30 The substance of the complaint can be seen from the statement given in response to several questions in the Form used to make the complaint. Question 2 in that Form asks the complainant to tell the defendant about the matter. The response is difficult to read, but doing the best I can it is as follows:

On 2 September 2011 AGFT4 sold the exclusive rights to provide legal services to entities related to the trust including Andrew Garrett personally. On 31 December 2011 a deed of mutual release was executed between the parties in consideration of the execution of new agreements of the same date. Companies that I am a director of made a number of payments to the legal [practice] to be held in trust by that firm with other monies paid (sic) are set out in letters dated 16 November 2012 addressed to the firm Hambros & Cahill. Between 5 November 2012 and 9 November Mr Andrew Garrett sought a proper accounting of the monies paid into trust without success. On 7 November 2012 HC Legal emailed copies of invoices that have never been seen before that purportedly relate to the legal services rights sale but significantly do not relate to the monies paid by the companies for specific purposes. A standing part of the agreement was for the provision of invoices in a taxable form which have not been provided. Oenoviva (ANZ) has paid $285,000 in respect of works to be undertaken on its behalf. For the last three weeks the company has sought Hambros & Cahill to accept the brief in SCI 2012 06164. However, has (sic) been silent in accepting the brief. On [?] November AGFT4 accepted the repudiation of the Exclusive Rights Sale by Hambros & Cahill on 7, 8 November (sic). Action SCI 2012 06164 is listed for 21 November in the Supreme Court and the company requires representation from the funds held in trust.

31 Question 6 asks for details of "the bills that you have received from your lawyer." It was said in response to this question:

There have been no invoices rendered on any of the companies set out above in respect of the money paid into trust.

32 Question 9 asks: "What did the lawyer do or fail to do which caused your financial loss?" It was said in response to this question:

The lawyers have failed to accept a brief in respect to SCI 2012 06164 in spite of holding funds in trust.

33 Question 10 asks: "When did the conduct alleged to have caused the loss occur?" In response the date of 1 July 2012 is identified. Question 11 asks: "How much money do you believe you have lost?" To which it was said: "$3,289,000."

34 With Mr Nowak's express authorisation the defendant's staff communicated primarily with the plaintiff, or a solicitor acting on the plaintiff's instructions, in the course of carrying out the investigation of the complaint.[25]

35 In the course of the extensive correspondence between solicitors acting for Mr Garrett and the defendant, the complaint was further explained. It may be said it shifted about from time to time. Mr Garrett explained it in the course of submissions[26] by reference to an email he wrote on 14 November 2014 to the Legal Practitioners Liability Committee:[27]

It is my case (as you will see from the recent letter dated 2 November 2014 to the LSC attached) that:

1. $400,000 was paid to be held in trust between the 11th December 2011 and the 6th April 2012,

2. $90,000 was dispersed pursuant to written authority,

1. The balance of $310,000 of trust moneys have been dealt with by the insured persons without written authority.
2. $4,500,000 received as a GST credit to the account of the insured persons had the characteristic of Trust Moneys as it was always intended to be paid onto the Trustee of AGFT4 for it to meet its own admitted GST liability appearing on its RBA as a consequence of the sale rights.

36 Later Mr Garrett's solicitors (at the time), Trumble Szanto Lawyers, summarised the complaint in another way in the following terms:[28]

In summary, it is [Mr Garrett's] assertion that Mr Cahill and Mr Hambros have deceived him, lied to him, falsified documents and misappropriated trust funds. They failed to observe the requirement imposed on lawyers in accordance with the requirements of the Legal Profession Act 2004, failed to provide disclosure statements when they should have, failed to account for trust moneys and, in more general terms, acted illegally and conducted themselves in a manner which amounts to professional misconduct or unsatisfactory professional conduct, as those terms are defined in the said Act.

37 The defendant summarised the complaint, compendiously and in my view accurately, as follows:

(a) Between 11 December 2011 and 14 February 2012 a number of payments were made to Hambros & Cahill's trust account by the companies, or by third parties on behalf of the companies, at the plaintiff's instigation;

(b) Those funds were paid or ought to have been paid into the firm's trust account;

(c) Those funds were taken by Hambros & Cahill in breach of trust because no work was ever done by the firm for the relevant clients and the plaintiff never received any invoices for that work.

38 Hambros & Cahill's response to the complaint may be summarised as follows:[29]

(a) The firm was retained by Holy Grail through its then director, the plaintiff, and various related entities on about 2 August 2011 (although at that time the plaintiff was not a director of Holy Grail);[30]

(b) The legal services were provided by the firm and invoices were rendered for the work at or after the completion of it;[31]

(c) The payments made to the firm were in respect of past work; and

(d) No moneys were ever paid into the firm's trust account.[32]

39 The decision of which the plaintiff complains was given on 31 March 2014.[33] In summary it was that the delegate of the defendant was satisfied that there was no reasonable likelihood that VCAT would find Mr Cahill guilty of professional misconduct or unsatisfactory professional conduct. Therefore, because of the provisions of the LPA, the defendant must take no further action against Mr Cahill.[34] The investigation undertaken and the reasons for decisions were then set out. In the course of doing so the defendant referred to correspondence from Mr Szanto (of Trumble Szanto Lawyers who represented the plaintiff during the course of the investigation) as follows:

(a) Letter dated 13 March 2013 which outlined requests of the law practice for proper details and itemisation of all the legal work that was alleged to have been covered by certain accounts and a proper accounting for the monies which they believe to have been held in trust by the firm; and

(b) An email dated 25 March 2013 setting out the payments made by Sanctuary and Oenoviva. These payments amount to $400,000 and were itemised in a table in the letter advising of the decision.[35] The consideration of the complaint was broken into three references (LSC reference 1, 2 and 3) and several emails.

40 In relation to LSC reference 1, which concerned payments by Sanctuary totalling $20,000, reference was made to investigations made of Mr Cahill and contentions raised by Trumble Szanto Lawyers on behalf of the plaintiff and it was concluded as follows:

My investigations have identified that an invoice was issued dated 17 November 2011 advising which bank account the money was to be paid into. A copy of the invoice and relevant emails has been provided to our office. The account details do not state that the account was a trust account. An email dated 30 November 2011 from you to Mr Cahill outlines that you were not in a position to pay $20,000 up front and that you could commit to pay $5,000 per week. Payments were made by four instalments in December 2011 and January 2012 and related to work from September to November 2011. The monies were not required to be placed in a trust account as the invoice was issued after the work was completed. As the money was not trust money, there was no obligation to provide a trust statement. Based on the information provided I am satisfied no breaches exist.

41 In relation to LSC reference 2, which concerned payments on behalf of Oenoviva totalling $285,000, the decision records that Mr Cahill provided copies of all relevant invoices, which were issued after the work was complete. Reference was made to the contention of Trumble Szanto Lawyers in their letter of 13 March 2013 that the plaintiff had understood the money advanced was to be held in trust as a provision for costs and that no tax invoices or accounts were received from the firm until 7 November 2012 when a series of ante-dated accounts was received at once. The delegate of the defendant concluded:

My investigations have identified that copies of invoices have been provided for all transactions. Copies of signed cost agreements have also been provided. Moneys were not required to be placed in a trust account as the invoice was issued after the work was completed. Based on the information provided I am satisfied that no breaches exist.

42 The letter then sets out a table identifying each invoice, the description of the work undertaken, the period over which the work was undertaken, the invoice amount, and the payment and balance due. This table demonstrated that the payments were not made until after the work had been undertaken with the exception of $5,000 paid on 19 December 2011 and a payment on 4 February 2012 giving rise to a credit of $5,000 for a short period.

43 In relation to LSC reference 3, which concerned payments by Sanctuary totalling $90,000, reference was made to Mr Cahill having advised that the sum was paid pursuant to a settlement between Sanctuary and Ancher Mortlock and Woolley. Extracts from an email from Mr Cahill to the plaintiff dated 5 April 2012 is set out. That email requested a bank cheque of $90,000 payable to Ancher Mortlock and Woolley being required to be delivered to the firm's office on the morning of 10 April 2012 in order to effect the settlement. The defendant's investigations revealed that instead of providing a bank cheque, the plaintiff on his own accord paid the sum directly into the operating account of HC Legal Pty Ltd ('HCL'). Trumble Szanto Lawyers had advised by letter on 10 September 2013 that according to their instructions from the plaintiff the $90,000 was not paid pursuant to the settlement and that Mr Cahill requested that the $90,000 be paid into a trust account. It was said that the plaintiff had no knowledge of the disbursements of the funds to Ancher Mortlock and Wolley. The defendant's investigations revealed that:

...You failed to follow the instructions provided by Mr Cahill outlined in the email dated 5 April 2012. This email followed an email to the other side stating 'I have instructions from my client to accept your client's terms of settlement...". Copies of emails have been provided. The money was to be paid directly to the third party. In the instance that the money was paid to the law firm, it could have been paid into trust. As a result of the money then placed in the operating account, there was no time for Mr Cahill to move it to trust prior to the settlement. In these circumstances I am not satisfied that this amounts to a disciplinary breach.

44 In relation to an email dated 18 March 2014 from the plaintiff to Worrells into which the defendant was copied it was alleged that the defendant had not investigated an issue relating to income sharing. The defendant concluded that this allegation was not raised in the initial complaint or subsequent documentation. The defendant stated that she presumed that the plaintiff was referring to s 2.7.20 of the LPA, which states that 'Nothing in this Act, the regulations or the Legal Profession Rules prevents an Australian legal practitioner from sharing with an incorporated legal practice receipts, revenue or other income arising from the provision of legal services by a practitioner'. In consequence, because HCL traded as Hambros & Cahill Lawyers and was registered with the Legal Services Board as an incorporated legal practice, she did not believe this to be a matter of concern to her.

45 In an email dated 26 March 2014 from the plaintiff to Trumble Szanto Lawyers, into which the defendant was copied, the plaintiff alleged that the defendant had not investigated an issue related to the failure of the practitioners to advise the liquidator of the execution of loan agreements on 22 February 2012. A copy of the liquidators' 'Advice to Creditors' dated 6 March 2014 was included with this correspondence. The defendant concluded that this was a matter constituting new information and did not concern the defendant, but that the defendant would monitor the outcome of the liquidators' actions.

46 In his Amended Originating Motion filed on 11 August 2014, the plaintiff begins with a series of alleged bases upon which his standing to commence the proceeding is based. In substance the plaintiff contends that he is a joint trustee of the AGFT4 and is possessed of a lien over the assets of the trust. He also contends that since 23 January 2014 he has been the managing controller of Oenoviva. In addition, he contends that since 9 May 2014 he has been the managing controller of Sanctuary. Each of Sanctuary and Oenoviva were two of the three joint trustees of AGFT4 when the complaint was made.

47 As can be seen from the detail of the complaint given above, it appears to have as its central thrust that the firm of Hambros & Cahill had dealt with trust moneys without proper authority. The real object of the application is revealed in the lengthy written submissions submitted by the plaintiff. At paragraph 4 of those submissions it is said that the matter is an application to review the merits of the decision made by the defendant on 31 March 2014.[36] Moreover, throughout the submissions and the Amended Originating Motion the plaintiff complains that the defendant has failed to comply with the overall purpose and intent of the LPA and, in addition, with the Public Administration Act 2004. An order in the nature of certiorari is sought to set aside the decision and an order in the nature of a mandamus is sought requiring the defendant to 'obey the provisions of chapter 4 of the LPA'.

48 The plaintiff submits that the evidence shows that the defendant has pursued a relentless campaign of resisting exercising his powers to investigate the complaints made in respect of the conduct of Hambros & Cahill and that there can be only one explanation for that failure; namely to reduce the amount of claims made on the fidelity fund administered by the Legal Services Board.

49 The plaintiff submitted that the main reason for the delay in the institution of the application was that the delegate of the defendant appeared to be reviewing the relevant details with a view to causing an internal review of the complaint after the decision was made on 31 March 2014. He contended that it was when it became apparent that the delegate of the defendant was exercising delaying tactics, and closed off his access by email so that he could not provide any more information in support of an internal review, that he decided to make a second complaint. It was then apparent to the plaintiff that the defendant did not review that decision and it was necessary to bring this application outside the relevant 60 day period. At the same time, the plaintiff was involved in extensive litigation in various jurisdictions which caused him further delay. He contends that he has been compelled to bring these proceedings unrepresented because of the failure of the defendant properly to investigate the complaint that would have resulted in a decision by the Legal Services Board to make payment to him out of the fidelity fund.

50 So far as the application for an order in the nature of certiorari is concerned, it seems that the principle contention of the plaintiff is that the invoices provided by the firm to the defendant and upon which the defendant has apparently relied in forming its conclusion were not genuine invoices or had not been rendered before the payments were made, so that the moneys paid should have been held by the firm as trust moneys. The plaintiff complains that had the defendant undertaken a review of the electronic records kept by the firm, it would have revealed that they had not been brought into existence until a date much later than the date they bear.

51 It is also apparently a subject matter of the complaint that moneys received from the Deputy Commissioner of Taxation by way of a refund of goods and services tax should have been kept by the firm in trust for payment to AGFT4. However this does not clearly emerge from the complaint as originally formulated.

52 A further element of the contentions made by the plaintiff arises from the fact that HC Legal Services Pty Ltd ('HCLS') apparently went into liquidation on 23 December 2011. The plaintiff contended that invoices purportedly raised by HCLS, if investigated, would reveal that the invoices were never issued to the plaintiff or any person related to him.

53 The defendant submits that the proceeding is hopeless, bound to fail and vexatious, and alternatively has no real prospect of success, for the following reasons:

(a) The proceeding is commenced out of time and there are no special circumstances warranting an extension of time;

(b) The plaintiff has no standing to seek relief in relation to the investigation carried out by the defendant;

(c) The plaintiff has not demonstrated that there is any error of law involved in the decision the subject of the application;

(d) The Amended Originating Motion filed on 11 August 2014 is confusing, rambling, unintelligible or irrelevant, and the evidence in support of it is largely inadmissible; and

(e) The proceeding has been commenced for a collateral purpose and is thus an abuse of process.

54 The jurisdiction of the Supreme Court on a judicial review application pursuant to Order 56 of the Rules is supervisory in nature and does not entitle the Court to canvas matters that it would on an appeal. Judicial review is not concerned with the merits of the decision under review.[37] As Justice Mason (as he then was) stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[38]

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

55 The plaintiff's submission makes clear that in substance what he seeks to do is to review the merit of the decision, set it aside and require the defendant, as he puts it, to undertake a proper investigation of the complaint.

56 Despite the volumes of material exhibited to the plaintiff's affidavits, I cannot be satisfied that any proper ground of review of the defendant's decision has been made out. Moreover I cannot be satisfied on the material advanced by the plaintiff that he has the standing to review the decision.[39] It seems to be clear that the application is made in part for the collateral purpose of the plaintiff assisting an application that has apparently been made for compensation out of the fidelity fund. That is not a proper purpose.

57 There is nothing unusual in the reasons advanced by the plaintiff for the making of a late application. He knew of the time limit, but seemingly preferred other demands on his time (in pursuing other litigation) to the timely commencement of an application to review the decision of the defendant. I am not satisfied that the reasons advanced by the plaintiff for his delay are objectively to be viewed as special circumstances.

58 It is also relevant to the determination of whether there are special circumstances that the plaintiff's substantive application is unlikely to be arguable. That is, the plaintiff has not persuaded me that he has a case for judicial review as distinct from a review of the decision of the defendant on its merits.

59 There is a significant additional element that persuades me in this case that there are no special circumstances. It is the public interest in the finality of litigation. After the defendant communicated his decision to the plaintiff on 31 March 2014, there were further efforts by the plaintiff to have the defendant review his own decision. This resulted in a further complaint being made on 14 May 2014, which the defendant's evidence reveals was not received until 10 August 2014.[40] A good deal of the plaintiff's evidence and submissions concerns this further complaint and the contention that of the moneys paid by or on behalf of AGFT4 to Hambros & Cahill the sum of $5,000 was discovered by the defendant to have been paid in advance and so was required to be paid by the firm into its trust account. To the extent that this reveals that the defendant may have overlooked an aspect of the subject of the complaint, or failed to have regard to some relevant matter, it is de minimus. In any event a further complaint was made about it and it is not the subject of the current complaint and decision.

60 The relief sought by the plaintiff in the Originating Motion reveals a fundamental misconception. The plaintiff seeks an order to review the decision of the defendant:

(a) That the directors of HCL and HCLS are guilty of misconduct;

(b) That the directors of HCL and HCLS have improperly dealt with funds paid into trust; and

(c) That the alleged HCL and HCLS invoices be set aside.

61 In the context of an order for review, this relief is unobtainable. The defendant is not empowered by the LPA to take the steps set out above. Only the Tribunal, on application by the defendant, where the defendant is of the view there is a reasonable basis for a finding that the practitioners are guilty of professional misconduct or unsatisfactory professional conduct, may make findings of fact of this kind. The plaintiff is in substance seeking declarations and injunctions and these are not available on an application of this kind, even if the grounds were made out, and I cannot be satisfied that any such grounds have been made out.

62 The relief claimed in the Amended Originating Motion also includes an order in the nature of mandamus to 'cause the defendant to comply with the provisions of chapter 4 of the LPA and undertake a proper investigation of the directors of HCL and HCLS'. The plaintiff does not, however, identify what he contends to be a proper investigation, and which provisions of chapter 4 the defendant has not (but should) comply with. In any event, the Court is not in a position to compel the investigation, as the plaintiff puts it, to be carried out 'properly'. Assuming relief in the nature of certiorari is available against the defendant by a complainant in the current circumstances (a matter not free from doubt),[41] all the Court may do is quash the decision and remit the matter to the defendant to be investigated again. Any further direction of the Court depends on identification of precisely what it is that the defendant has failed to do, the provision he has not observed and should observe, and so on.

63 On 15 May 2015, the Federal Court made a sequestration order against the estate of Mr Garrett. The date of his bankruptcy is 19 January 2015.

64 The Trustee in Bankruptcy has written to the Court (on 29 May 2015) indicating his understanding that legal proceedings commenced by Mr Garrett are stayed in accordance with s 60(2) of the Bankruptcy Act 1966 ('Act'). On 23 June the Trustee wrote to the defendant electing not to continue with this action.

65 By s 60(2) of the Act an action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. By s 60(3) of the Act if the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. The word 'action' is defined to mean any civil proceeding, whether at law or in equity: s 60(5).

66 By s 60(4) a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or member of his or her family or in respect of the death of his or her spouse or de facto partner or member of his or her family.

67 Section 60 was enacted deliberately as a broad provision, so as to encompass any proceeding brought by a bankrupt before bankruptcy. The exceptions are expressed quite narrowly. The intention is that, once a bankruptcy occurs, no further costs should be incurred in a proceeding unless the trustee in bankruptcy makes an election to continue the proceeding.[42] It is directed towards the protection of the bankrupt's creditors, by preventing the unnecessary dissipation of the assets of the estate in fruitless litigation. It also has the purpose of protecting a defendant or other party to a pending proceeding. A defendant or other party to a pending proceeding suffers an immediate detriment upon the plaintiff becoming a bankrupt. The detriment is that if the defendant or other party should be successful in the proceeding, and should obtain an order that the plaintiff pay the costs of the proceeding, the order will be effectively unenforceable because of the bankruptcy.[43]

68 There are no doubt many other aspects of the Act, including ss 58 and 116, that bear upon the determination of whether this proceeding is presently abandoned pursuant to the Trustee's election.[44] At the time of writing, the defendant has issued an application returnable on 20 October 2015 for the proceeding to be stayed or dismissed, based on the election by the Trustee.

69 The argument in this application was heard before the bankruptcy and I consider that it is incumbent on me to deliver a decision on the application, and these reasons, despite the likely effect of the Trustee's election being that the application and the proceeding is abandoned.

70 The application to extend the time within which to commence the application for judicial review does not disclose any special circumstances. In substance the reason for the delay in filing the application is that Mr Garrett was busy with other matters. He was aware of the time limit but his devotion to other litigation was given priority over the application to review the decision of the defendant.

71 Further, it has not been demonstrated by Mr Garrett that there is any real prospect of the application for judicial review succeeding. The substance of the claim is a failure to take into account relevant matters. But in truth his application is in the nature of a merits review. This is not available under Order 56 of the Rules.

72 Thus, there being no special circumstances existing to extend the time, and there being no real prospects of success if the time were extended, it is not appropriate to extend the time.

(a) Mr Garrett, by his own admission, seeks to use this proceeding for the collateral purpose of assisting his claim for compensation form the fidelity fund. That is not a proper purpose for the judicial review of the decision of the defendant;

(b) Mr Garrett has not satisfied me that he has standing to commence the proceeding;

(c) Since the hearing of this application the plaintiff has been declared bankrupt and, in consequence of an election by his Trustee, the proceeding is abandoned.

74 Accordingly, the application will be refused and the proceeding dismissed, with costs.

[1] Since this decision was reserved, the plaintiff has been declared a vexatious litigant in the Federal Court of Australia: Garrett v Commissioner of Taxation [2015] FCA 117.

[2] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 523; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Werden v Legal Services Board [2012] VSCA 278; (2012) 36 VR 637, [53].

[3] Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509, 510; [1994] HCA 23; 121 ALR 148, 150; Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68, [104].

[4] Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130.

[5] [2007] VSC 337; (2007) 17 VR 100, 130.

[6] Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, (16 June 1986), 14.

[7] They include Denysenko v Dessau, [1996] VicRp 65; (1996) 2 VR 221, Beach J; Prencipe v Nisselle, [1999] VSC 137; Kay v Legal Profession Tribunal [2000] VSC 460, Beach J; Lednar v Magistrates' Court, [2000] VSC 549, [122]-[150] per Gillard J; Carra v Hamilton, (2001) 3 VR 114; [2001] VSC 215; Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; Somerville Retail Services Pty Ltd v Vi [2008] VSC 196; Goodman v Victorian Civil and Administrative Tribunal and Ors [2011] VSC 35, [28] and [29]; Somerville Retail Services Pty Ltd, [2008] VSC 196, [42]-[44].

[8] Re Beadle and DirectorGeneral of Social Security (1984) 6 ALD 1, 3. An appeal from that decision was dismissed by the Full Court of the Federal Court of Australia [1984] AATA 176; (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ); see also Goodman v Victorian Civil and Administrative Tribunal and ors [2011] VSC 35 [28].

[10] [2004] VSCA 148.

[11] [2000] VSC 549, [122]-[150] per Gillard J.

[12] (2001) 3 VR 114; [2001] VSC 215 [24].

[13] [2002] VSC 256 [18].

[14] Mann [2004] VSCA 148 [72] (Hansen AJA).

[15] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 [68] (Hansen AJA) (Chernov JA [5] and Nettle JA [8] agreed with Hansen AJA).

[16] Mann [2004] VSCA 148, [70] (Hansen AJA).

[17] Mann v Medical Practitioners Board of Victoria [2002] VSC 256 [18], approved in Mann.

[18] Mann v Medical Practitioners Board of Victoria [2002] VSC 256 [19], approved in Mann.

[19] A manifest excess of jurisdiction might in some cases amount to special circumstances: Mann v Medical Practitioners Board of Victoria, [2002] VSC 256 [19], approved in Mann. Since the introduction of the Civil Procedure Act 2_010_, Part 4.4, it seems to me that this question should be cast in terms of whether the plaintiff has a real prospect of success.

[20] Mann [2004] VSCA 148 [57], [58] and [72] (Hansen AJA); Lednar v The Magistrates' Court [2000] VSC 549 [137], [142] and [143] (Gillard J); Young v The County Court [2005] VSC 311 [17] (Osborn J); Goodman v Victorian Civil and Administrative Tribunal and ors [2011] VSC 35 [29].

[21] Mann v Medical Practitioners Board of Victoria, [2002] VSC 256 [19], approved in Mann.

[22] Affidavit of Michelle Jane Harper sworn 25 July 2014 on behalf of the defendant ('First Harper Affidavit') at paragraphs 3-5 and exhibit MH-1.

[23] On 22 October 2010 the plaintiff was convicted of contravening s 140 of the Criminal Law Consolidation Act 1935 (SA). By operation of s 206B(1)(b)(ii) of the Corporations Act 2001, the plaintiff is disqualified from taking part in the management of a corporation for a period of 5 years from the date of the conviction: See Garrett v Deputy Commissioner of Taxation [2014] FCA 576 at [10]; Second Harper affidavit at [5].

[24] Exhibit MH-34 to the Third Harper affidavit; Second Garrett affidavit, Exhibit AMG-1, printed page 161.

[25] Third Harper affidavit, Exhibit MH-38.

[27] Third Garrett affidavit, Exhibit AMG-1, page 84-5.

[28] Second Garrett affidavit, exhibit AMG-1 printed page 197-8, letter dated 10 September 2013 to the defendant.

[29] Second Harper affidavit, exhibits MH-22, MH-23 and MH-24, defendant's outline of submissions paragraph 20.

[31] Second Harper affidavit at MH-18 and MH-20.

[32] Defendant's outline of submissions at paragraph 20.

[33] First Garrett affidavit, Exhibit AMG-1.

[34] That is the effect of s 4.4.13(5) of the LPA.

[35] First Garrett affidavit, Exhibit AMG-1.

[36] Plaintiff's submissions for hearing 20 and 28 November 2014, 19 November 2014.

[37] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175-6.

[38] [1986] HCA 40; (1986) 162 CLR 24, 40-41.

[39] The facts relevant to the standing of the plaintiff are succinctly summarised in the Second Harper affidavit at [6]-[21] and in the exhibits referred to in those paragraphs. The defendant's Outline of Submissions dated 20 October 2014 at [46]-[60] draws the facts together and shows that the plaintiff has not established his standing to seek relief in the nature of certiorari or mandamus.

[40] Second Harper affidavit at [44].

[41] See for example the decision in Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612, [66]-[72].

[42] Re Lofthouse, [2001] FCA 25; (2001) 107 FCR 151, [20].

[43] Re Lofthouse, [2001] FCA 25; (2001) 107 FCR 151, [19].

[44] The matter was considered recently by Riordan J in Deputy Commissioner of Taxation v Garrett [2015] VSC 347 in the context of a different proceeding. See generally Cox v Journeaux & Ors (No. 2) [1935] HCA 48; (1935) 52 CLR 713; Cummings v Claremont Petroleum NL (1996) 185 CLR 124; Daemar v Industrial Commission of New South Wales & Ors (1988) 12 NSWLR 45; Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115, 118-122; Owens v Comlaw (No 62) Pty Ltd [2006] VSCA 151, [35]-[37] per Ashley JA).